WRITTEN BY John Wilson, Kieran Pender & Esther Bornstein
2025 has been a significant year for the ongoing evolution of Australia’s employment law landscape. Following considerable legislative reform in the first term of the Albanese Government, the re-election of the Australian Labor Party saw continued movement in that space. In recent years we have seen expansive changes, ranging from the criminalisation of ‘wage theft’, the safeguarding of penalty and overtime rates, the expansion of the paid parental leave scheme, new work health and safety regulations, the ‘right to disconnect’ and streamlined casual employment conversion pathways. This year has been a time of consolidation and renewal.
The past year also saw several significant decisions, reshaping our understanding of the role and duties of employers when engaging with difficult internal workplace decisions, such as flexible working arrangements and redundancies. Two decisions handed down in the latter half of the year – the High Court’s judgment in Helensburgh Coal Pty Ltd v Bartley,[1] and the Fair Work Commission’s decision in Chandler v Westpac Banking Corporation,[2] underscore the importance of employers closely adhering with their procedural obligations under the Fair Work Act 2009 (Cth), whilst also ensuring a genuine and individualised approach is taken when engaging with workplace decision making processes.
As the year comes to a close, these decisions deserve scrutiny – they provide important lessons for employers, in the legal sector and beyond.
In a post-pandemic Australia, working from home has become both increasingly normalised and a source of considerable upheaval. Australian Bureau of Statistics data shows that up to one third of all workers now engage in flexible working from home arrangements, more than double the amount prior to the COVID 19 pandemic. The latest HILDA survey, meanwhile, found that three in five Australians reported the same or better productivity following increased hours working from home.[3] These wholesale social shifts have prompted increased attention from governments. Notably, in Victoria, the Allan Government is seeking to enshrine a ‘right to work from home’ for at least two days a week.[4]
However, at the same time, return to work mandates are increasingly commonplace and employers continue to raise concerns about home working arrangements, citing the importance of being in the office for connection, accountability and professional development. A tension has emerged between balancing this increased push by many for improved work life balance whilst also maintaining traditional workplace structures.
Under the Fair Work Act, employees do not have an automatic right to work from home. However, section 65(1) allows eligible employees to request flexible working arrangements in specific circumstances. These include situations where the employee is pregnant, is a parent, or has responsibility for the care of a child who is of school age or younger, is a carer, has a disability, is 55 years or older or is experiencing family and domestic violence. Employees can also make these requests if they provide care or support to a member of the employee’s immediate family or household.
Where an employee makes a flexible working request, the employer must respond within 21 days and can only refuse the request if they have genuinely attempted to reach an agreement with the employee and have reasonable business grounds for the refusal. This regime, adopted in June 2023, reflect the legislature’s intent to encourage flexible working – expanding beyond prior provisions which had a more limited scope. Two years on, the impact of those changes are coming to fruition – as evidenced by some recent Fair Work Commission decisions.
In October, the FWC handed down a significant flexible work decision which has reverberated across workplaces and received considerable media attention. Karlene Chandler, an employee of Westpac, had been working from home for several years with an unblemished performance record. She formally requested to work remotely under section 65 of the Fair Work Act to enable her to care for her children and attend to school pick-ups and drop-offs. Westpac refused the request. Ms Chandler then suggested an alternative arrangement where she would work from a local Westpac branch for two days per week rather than attend the corporate office in Sydney. This suggestion was also rejected by Westpac. The dispute was escalated to the FWC.
The FWC ruled in favour of Ms Chandler, ordering Westpac to approve her request to work from home under s 65(1)(f) of the Fair Work Act. What will be of interest to many employers was Deputy President Roberts critique of Westpac’s failure to follow the statutory process for responding to flexible working requests. Westpac did not respond within the required 21-day time frame. Then when Ms Chandler did seek reasons for the refusal Westpac was tardy in providing them and, when it did, the reasons were described by DP Roberts as ‘cursory at best.’[5]
Ultimately, DP Roberts held that the evidence was insufficient to establish that there were reasonable grounds for the refusal. Westpac was unsuccessful in quantifying any negative impact or persuasively articulating concerns regarding productivity and customer service that may have arisen had the flexible working arrangement requested by Ms Chandler taken place. DP Roberts held that as Ms Chandler had been successfully working remotely for a number of years, whilst maintain high performance ratings, it would be unlikely that any of the arrangements suggested by her would generate adverse results for Westpac.
Chandler is therefore an important reminder of the need to comply with procedural obligations set out within the Fair Work Act. For employees, non-compliance might provide strong grounds to challenge refusals to flexible working arrangement requests. Where employers do decide to refuse requests, care should be taken to ensure that their reasons for doing so provide a substantive and accurate outline of the potential negative impacts that may arise from the arrangements proposed by the employee, taking into account both current and prospective circumstances.
A FWC decision from July, Collins v Intersystems Australia,[6] highlights the inverse. In that dispute, the employer had issued a memorandum, advising that all staff would be required to return to the office five days per week to enhance the company’s customer service delivery. Subsequently, an employee, Mr Collins, submitted a formal request for a flexible working arrangement that would allow him to continue to work from home two days a week due to caring responsibilities for his children. Upon receipt of this request, the employer informed Ms Collins that what she was asking for could not be accommodated but offered an alternative arrangement: the ability to work from home one day per week. The employee did not accept the proposed alternative arrangement.
When the matter came before the FWC, Deputy President Dean held that the employee had failed to establish a sufficient link between his parental responsibilities and the requested arrangement. Rather, the request was based on preference and not a requirement to meet his parental responsibilities as he had no specific caring responsibilities during core work hours. Further, due to the clear compliance by the employer with the requirements outlined in the legislative regime, no procedural issues arose. The differing outcomes in Chandler and Collins serve to demonstrate the importance of clear justifications for workplace decisions, as well as strict procedural compliance.
Of considerable significance to employers this year has been the changing requirements for genuine redundancy in Australia. Section389 of the Fair Work Act provides that a redundancy will be genuine where the employer no longer required the job to be performed by anyone due to changes in the operational requirements of the employer’s enterprise, and has complied with procedural obligations under the relevant awards or enterprise agreements. However, a person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity.
In its judgment in Helensburgh handed down in August, the High Court held that determining whether an employee can be redeployed requires assessing whether the employer could have restructured its operations to facilitate redeployment, even in circumstances where no existing vacancies were available. This judgment significantly expands the obligations placed on employers when considering the redundancies, mandating a broad consideration of redeployment options.
In Helensburgh, employees of the Helensburgh Coal mine were dismissed by way of redundancy due to an economic downturn that occurred during the pandemic. The mine had restricted its operations by employing fewer workers, and had increased the number of contractors. Twenty-two former employees lodged unfair dismissal claims, arguing that their dismissals were not ‘genuine redundancies’ under the Fair Work Act because it would have been reasonable to redeploy these employees into the roles that were now being performed by contractors.
The High Court held that s 389(2) permits the FWC to examine whether an employer could have made changes to how it uses it workforce, and that in the circumstances, the FWC was correct in considering whether Helensburgh Coal Mine could have redeployed its workers even where no vacant positions currently existed within the enterprise. This requires determining whether a reorganisation of the current workplace structure is necessary.
Specifically, the Court looked to the broad nature of the statutory requirement that redeployment be ‘reasonable in all the circumstances’, extending this to include an expansive inquiry into workforce arrangements, business choices and policies, rather than merely a narrow inquiry as to whether a vacancy exists.[7]
Helensburgh is a significant case for employers. As an increasing number of businesses opt to outsource operations or engage in restructures for greater commercial efficiency, the High Court has intensified the necessary scrutiny on the redundancy process itself. Following Helensburgh, when contemplating redundancies, employers must first consider whether adjustments to workforce structures can and should be made to best accommodate for their employees, before proceeding with dismissals.
Following a period of busy legislative reform in the employment law landscape, recent decisions of the High Court and the FWC have provided clarity on two significant issues. Chandler and Collins provide useful guidance on managing work from home requests, while the High Court’s decision in Helensburgh requires that employers think carefully about redeployment options before making employees redundant.
For further guidance on managing offshore employment arrangements, please contact our Employment Law & Investigations team at BAL Lawyers on 02 6274 0999.
[1] [2025] HCA 29 (6 August 2025) (‘Helensburgh’).
[2] [2025] FWC 3115 (20 October 2025) (‘Chandler’).
[3] Melbourne Institute of Applied Economic and Social Research, ‘Household, Income and Labour Dynamics in Australia’ (Web Page) <https://melbourneinstitute.unimelb.edu.au/hilda/publications/hilda-statistical-reports>.
[4] Premier of Victoria, ‘Work From Home Works For Families’ (Media Release, 2 August 2025)
<https://www.premier.vic.gov.au/work-home-works-families>.
[5] [2025] FWC 3115 (20 October 2025) [17].
[6] [2025] FWC 1976 (14 July 2025) (‘Collins’).
[7] See [2025] HCA 29 (6 August 2025) [35]–[49].
First published in the Summer 2025/26 ACT Law Society Ethos Journal.